Employment

Do you need a sexual harassment prevention plan in Queensland from 1 March 2025?

January 28, 2025

Queensland has made two key changes to safety laws to help manage psychosocial risks to workers.

First, a person conducting a business or undertaking (PCBU) must identify and manage psychosocial risks associated with work, as part of the general duty under work health and safety laws.  This change reflects amendments being made around much of the country.

Second, under changes unique to Queensland:

  • a PCBU has an express obligation to identify risks associated with sexual harassment at work or from sex or gender-based harassment at work, proactively, as part of the duty to manage psychosocial risks; and
  • from 1 March 2025, if it identifies such a risk, a PCBU must prepare and implement a written prevention plan to manage that risk proactively.

Positive obligation to identify and manage psychosocial risks

Changes to the Work Health and Safety Regulation 2011 (Qld) (Qld WHS Regs) from 1 September 2024:

  • introduced express obligations to manage psychosocial hazards and risks proactively; and
  • extended the duty to manage psychosocial risks, by imposing additional obligations to manage psychological risk that involves a risk of sexual harassment and sex or gender-based harassment at work, and in particular, to consider, when determining what control measures to put in place to manage those psychosocial risks:
    • matters relating to the characteristics of workers; and
    • matters relating to the characteristics of the workplace.

These changes are consistent with Safe Work Australia's 2024 release of a National Model Code of Practice concerning sexual and gender-based harassment, which has already been adopted in NSW.

The changes from 1 March 2025 will add to those requirements, as we address below.

The statutory definitions of 'psychosocial hazard', 'psychosocial risk', 'sexual harassment', and 'sex or gender-based harassment' are important but lengthy, so we summarise them at the end of this post.

To comply with the duty under the Qld WHS Regs to manage psychosocial risks, a PCBU must 'have regard to all relevant matters' including a long list of things such as:

  • the duration, frequency or severity of exposure to psychosocial hazards;
  • the design of work, including job demands;
  • the systems of work, including how work is managed, organised and supported;
  • how psychosocial hazards may interact or combine; and
  • workplace interactions or behaviours.

The scope is wide enough to encompass the way/s (or how) an employer manages psychosocial risks that arise from, or are associated with, its chosen method of performance management or disciplinary action.

Proactive management of risks – identifying risks and appropriate control measures and reviewing their efficacy

Reinforcing that these are psychosocial hazards that must be managed proactively, the Qld WHS Regs require a PCBU to identify, and to implement appropriate control measures to address, the psychosocial risks associated with sexual harassment and sex or gender-based harassment at work.

The starting point is to identify psychosocial risks that may arise from sexual harassment and sex or gender-based harassment at work, and what preventative or control measures may be appropriate to help manage the risk that the conduct occurs in the first place.

In choosing what control measures to put in place to manage these psychosocial risks, the PCBU must 'have regard to all relevant matters in relation to the risk of sexual harassment or sex or gender-based harassment, including':

  • 'matters relating to characteristics of the workers', such as their age, gender, sex, sexual orientation or disability (which may include, for example, employing one young worker in a work group otherwise consisting of workers of a different sex and a similar age and much older age); and
  • 'matters relating to characteristics of the workplace or work environment', such as whether the work environment may give rise to a workplace culture, or system of work, that permit unacceptable or inappropriate behaviour, or a lack of diversity in the workplace or in particular decision-making positions (which may include, for example, such things as a need to interact with non-employees who are beyond the PCBU's direct control, such as customers, visitors, patrons on a bus or train or family members at the home of an in-home care support client).

Those familiar with the Anti-Discrimination Act 1991 (Qld) and the Sex Discrimination Act 1984 (Cth) will no doubt recognise that these sorts of matters are commonly considered in the context of claims of unlawful discrimination and harassment.

The aim of these changes is to encourage or require a shift from reacting to claims, and reliance on individuals making claims before acting or introducing any change, to a systems-based, proactive approach to managing identifiable risks to the wellbeing of workers, and acting before a complaint (if any) is made.

The 1 March 2025 requirements to document, review the efficacy of, and revise, the selected control measures in Queensland, to help the PCBU remain proactive, is consistent with this approach.

Preventative plan requirements

If, in the course of meeting its duty to identify psychosocial risks, a PCBU in Queensland identifies a risk associated with the risk of sexual harassment or sex or gender-based harassment, from 1 March 2025 that PCBU must prepare and implement a prevention plan.

A prevention plan must:

  • be in writing and state each identified risk and the control measures implemented, or to be implemented, to manage each identified risk;
  • identify the matters the PCBU took into account in determining what control measures are appropriate, including the relevant characteristics of the workers and the workplace, and the relevant matters of severity of risk, etc., considered;
  • describe how the PCBU met its obligation to consult workers in developing the plan;
  • set out the procedure for dealing with reports of sexual harassment or sex or gender-based harassment at work, including:
    • how to make a report, how it will be investigated and how the results of the investigation will be shared;
    • a recognition of a discloser's right to be represented; and
    • a recognition of a discloser's right to utilise the pre-existing issue resolution and dispute resolution methods under the Work Health and Safety Act 2011 (Qld); and
  • be expressed in a readily accessible and understandable way.

A PCBU must take reasonable steps to ensure that all workers are aware of the prevention plan and how to access it, and must review the plan:

  • as soon as practicable after receiving:
    • a report of sexual harassment or sex or gender-based harassment at work; or
    • a request by a health and safety committee for the workplace or a worker's health and safety representative; and
  • otherwise, at least once every three years.

What to do now

To understand whether it needs to have a prevention plan in place by 1 March 2025, every PCBU in Queensland will need to consider its psychosocial risks and, in particular, whether it needs to address any psychosocial risks associated with sexual harassment at work or from sex or gender-based harassment at work.

Prudent PCBUs will consider these matters now, before the 1 March 2025 deadline passes.

For help meeting these positive proactive duties, please contact our Employment, Workplace Relations and Safety Team.

Author

Andrew Cardell-Ree | Partner | +61 7 3338 7926 | acardellree@tglaw.com.au

Andrew would like to thank Gemma Grattan, Summer Clerk, for her assistance with this Insight.

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